David F. Power v. FLRA, 146 F.3d 995 (D.C. Cir. 1998)

ORAL ARGUMENT SCHEDULED FOR APRIL 13, 1998
No. 97-1414
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
DAVID F. POWER,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
PENSION BENEFIT GUARANTY CORPORATION,
Intervenor
_______________________________
ON PETITION FOR REVIEW OF AN ORDER
OF THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE
FEDERAL LABOR RELATIONS AUTHORITY
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
ANN M. BOEHM
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
ORAL ARGUMENT SCHEDULED FOR APRIL 13, 1998
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
A. Parties and amici
Appearing below in the administrative proceeding
before the Federal Labor Relations Authority were the Pension Benefit Guaranty
Corporation ("PBGC"), and National Treasury Employees Union ("NTEU"). David F.
Power is the petitioner in this court proceeding; the Authority is the
respondent.
B. Rulings under review
The ruling under review in this case is the Authority's Decision and
Order on Remand in Pension Benefit Guaranty Corporation, Case No. 3-
CA-90456 on April 30, 1997. The Authority's decision is reported at 52
FLRA (No. 132) 1390.
C. Related Cases
This case has been before this Court in Pension Benefit Guaranty
Corporation v. FLRA, 967 F.2d 658 (1992). This case has not previously
been before any other court. Counsel for the Authority is unaware of
any cases pending before this Court which are related to this case
within the meaning of Local Rule 28(a)(1)(C).
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUES 2
STATEMENT OF THE CASE 3
I. Nature of the case 3
II. Statement of the facts 4
A. Power's employment at PBGC and facts prompting
his discharge 4
1. Failure to follow OGC concurrence matrix 5
2. Failure to supply a representative writing
sample 6
3. Refusal to relinquish copies of PBGC's
computer survey data 8
4. Power's failure to cooperate in an official
investigation 8
5. Refusal to accept computer messages 9
B. The Removal of Power 10
III. Proceedings below 11
A. The ALJ's and Authority's original decisions in
PBGC I 11
B. This Court's decision in PBGC v. FLRA 13
C. The Authority's PBGC II decision remanding the
case to the ALJ 15
D. The ALJ's remand decision 16
E. The Authority's decision in PBGC III 17
STANDARD OF REVIEW 22
SUMMARY OF ARGUMENT 23
ARGUMENT 25
I. The Authority properly determined that PBGC established
a legitimate justification for Power's discharge 25
A. Insubordination is a legitimate justification for
discharge 26
B. Substantial evidence supports the Authority's
determination that Power's insubordinate conduct
was a legitimate justification for his removal 27
1. The Authority's factual findings with regard
to Power's conduct are not disputed 27
2. Power's insubordinate conduct was not protected
activity under the Supreme Court's City Disposal decision and the
Authority's Bassan decision, nor
was it excusable under precedent relating to
"flagrant misconduct" 28
II. The Authority, based upon its analysis of similarly
situated employees, properly determined that the
agency's termination of petitioner's employment did
not constitute disparate treatment 33
A. The Authority, in accord with the Court's remand,
correctly identified appropriate factors to
consider in conducting its disparate treatment
analysis 33
B. The Authority's determination that Power was not
disparately treated was reasonable and is
supported by substantial evidence 35
1. Substantial evidence supports the Authority's
reasonable finding that Power was similarly
situated to Employees Nos. 6 and 8 and not
disparately treated 36
a. Employee No. 6 36
b. Employee No. 8 37
2. Substantial evidence supports the
Authority's finding that Power was not
similarly situated to Employees Nos. 1, 7,
9, and 10 38
a. Employee No. 1 38
b. Employees Nos. 7, 9, and 10 40
III. Petitioner's arguments regarding Authority error in
excluding new evidence and Authority Member bias are
without merit 41
A. The Authority properly upheld the ALJ's
evidentiary rulings 41
B. Petitioner's contention that the Authority's
decision was tainted by bias is unfounded 42
1. Section 7123(c) bars the Court's
consideration of petitioner's bias argument 43
2. Case law regarding recusal and bias in
administrative adjudications refutes
petitioner's contention regarding
Member Wasserman 44
3. Member Wasserman's decision was unbiased 45
CONCLUSION 46
ADDENDA
Relevant portions of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. §§ 7101-7135 (1994) and
pertinent regulation .................................... A-1
Declaration of Donald S. Wasserman dated
February 9, 1998 ........................................ B-1
TABLE OF AUTHORITIES
* AFGE Local 2441 v. FLRA, 864 F.2d 178
(D.C. Cir. 1988) 22, 37
Bureau of Alcohol, Tobacco and Firearms v. FLRA,
464 U.S. 89 (1983) 23
Chaney Creek Coal Corp. v. Federal Mine Safety and Health
Review Commission, 866 F.2d 1424 (D.C. Cir. 1989) 35
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984) 22
Cities of Campbell v. FERC, 770 F.2d 1180
(D.C. Cir. 1985) 42
Department of Treasury, Office of Chief Counsel v. FLRA,
873 F.2d 1467 (D.C. Cir. 1989) 34
EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984),
cert. dismissed, 476 U.S. 19 (1986) 22
Fort Stewart Sch. v. FLRA, 495 U.S. 641 (1990) 22
INS v. Abudu, 485 U.S. 94 (1988) 41
Jenkins v. Sterlacci, 849 F.2d 627 (D.C. Cir. 1988) 44
Jim Walter Resources, Inc. v. Secretary of Labor,
103 F.3d 1020 (D.C. Cir. 1997) 35
Kalkines v. United States, 473 F.2d 1391 (Ct.Cl. 1973) 9
* LCF, Inc. v. NLRB, 129 F.3d 1276 (D.C. Cir. 1997) 22, 35
* Metropolitan Council of NAACP Branches v. FCC,
46 F.3d 1154 (D.C. Cir. 1995) 44, 45
* NLRB v. City Disposal, Inc., 465 U.S. 822
(1984) passim
NLRB v. FLRA, 2 F.3d 1190 (D.C. Cir. 1993) 44
NLRB v. Jacob E. Decker and Sons, 569 F.2d 357
(5th Cir. 1978) 42
National Treasury Employees Union v. FLRA, 721 F.2d 1402
(D.C. Cir. 1983) 22
Overseas Educ. Ass'n v. FLRA, 858 F.2d 769
(D.C. Cir. 1988) 22
Phillips v. General Services Admin., 878 F.2d 370
(Fed. Cir. 1989) 26
Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987) 31
United States Department of Commerce, National Oceanic
and Atmospheric Administration, National Weather Service
v. FLRA, 7 F.3d 243 (D.C. Cir. 1993) 43
United Steelworkers of America v. Marshall, 647 F.2d 1189
(D.C. Cir. 1980) 45
Webster v. Dep't of the Army, 911 F.2d 679
(Fed. Cir. 1990) 26
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
* Department of Labor, Employment & Training Administration
and Lou Ann Bassan, 43 FLRA 1036 (1992) passim
* Letterkenny Army Depot, 35 FLRA 113 (1990) 12, 13, 27
Long Beach Naval Shipyard, Long Beach, California and
Long Beach Naval Shipyard, Long Beach, California,
25 FLRA 1002 32, 33
United States Air Force Academy, Colorado Springs,
Colorado, 52 FLRA 874 (1997) 26
* U.S. Air Force Logistics Command, Tinker Air Force Base,
Oklahoma City, OK, 34 FLRA 385 (1990) 32
U.S. Department of the Air Force, Tinker Air Force Base,
Oklahoma and AFGE Local 916, 35 FLRA 1145 (1990) 32
DECISION OF THE NATIONAL LABOR RELATIONS BOARD
PYA/Monarch, Inc., 275 NLRB 1194 (1985) 26
DECISIONS OF THE MERIT SYSTEM PROTECTION BOARD
* Douglas v. Veterans Administration, 5 MSPB 313
(1981) 14, 16, 33, 34
Redfearn v. Department of Labor, 58 MSPR 307 (1993) 26
STATUTES
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) 2
5 U.S.C. § 7102 3, 11, 30
5 U.S.C. § 7105(a)(2)(G) 2
5 U.S.C. § 7114(b)(4) 32
5 U.S.C. § 7116(a)(1) 3, 11, 25
5 U.S.C. § 7116(a)(2) 3, 11, 12, 25
5 U.S.C. § 7123 2
5 U.S.C. § 7123(a) 2
* 5 U.S.C. § 7123(c) 22, 42, 43
5 U.S.C. § 706(2)(A) 22
28 U.S.C. § 455 45
CODE OF FEDERAL REGULATIONS
5 C.F.R. § 2429.17 44
*Cases or authorities chiefly relied upon are marked by asterisks.
GLOSSARY
Abudu INS v. Abudu, 485 U.S. 94 (1988)
AFGE Local 2441 AFGE Local 2441 v. FLRA, 864 F.2d 178
(D.C. Cir. 1988)
AGC Beck Assistant General Counsel Jeanne Beck
ALJ Administrative Law Judge
Bassan Department of Labor, Employment & Training
Administration and Lou Ann Bassan, 43 FLRA 1036
(1992)
CEO Message Comprehensive Electronic Office Message
City Disposal NLRB v. City Disposal, Inc., 465 U.S. 822
(1984)
DGC Flowe Deputy General Counsel Carol Connor Flowe
Douglas Douglas v. Veterans Administration, 5 MSPB 313
(1981)
GC PBGC General Counsel
General Counsel General Counsel of the Federal Labor Relations
Authority
LCF LCF, Inc. V. NLRB, 129 F.3d 1276
(D.C. Cir. 1997)
Letterkenny Letterkenny Army Depot, 35 FLRA 113 (1990)
Long Beach Long Beach Naval Shipyard, Long Beach,
California and Long Beach Naval Station,
Long Beach, California, 25 FLRA 1002 (1987)
MSPB Merit Systems Protection Board
NLRA National Labor Relations Act
NLRB National Labor Relations Board
NTEU or National Treasury Employees Union
union
NTEU v. FLRA National Treasury Employees Union v. FLRA,
721 F.2d 1402 (D.C. Cir. 1983)
OGC PBGC's Office of General Counsel
PBGC or Pension Benefit Guaranty Corportation
agency
PBGC I Pension Benefit Guaranty Corp., 39 FLRA 905
(1991)
PBGC II Pension Benefit Guaranty Corp., 47 FLRA 595
(1993)
PBGC III Pension Benefit Guaranty Corp., 52 FLRA 1390
(1997)
Power or Petitioner David F. Power
Redfearn Redfearn v. Department of Labor, 58 MSPR 307
(1993)
Statute Federal Service Labor-Management Relations
Statute, 5 U.S.C. §§ 7101-7135
(1994 & Supp II 1996)
Tinker AFB U.S. Air Force Logistics Command, Tinker
Air Force Base, Oklahoma City, OK, 34 FLRA 385
(1990)
ORAL ARGUMENT SCHEDULED FOR APRIL 13, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 97-1414
_______________________________
DAVID F. POWER,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
PENSION BENEFIT GUARANTY CORPORATION,
Intervenor
_______________________________
ON PETITION FOR REVIEW OF AN ORDER
OF THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE
FEDERAL LABOR RELATIONS AUTHORITY
STATEMENT OF JURISDICTION
The final decision and order under review in this case was issued by the
federal Labor Relations Authority ("FLRA" or "Authority") in Pension Benefit
Guaranty Corporation, 52 FLRA 1390 (1997), Appendix after Remand ("RA") 1218
(PBGC III).[1] The Authority exercised jurisdiction over the case pursuant
to section 7105(a)(2)(G) of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) (Statute).[2]
This Court has jurisdiction to review the Authority's decisions and orders
pursuant to section 7123(a) of the Statute. David F. Power ("Power" or
"petitioner") filed a petition for review within the 60-day time limit
provided by 5 U.S.C. § 7123.
STATEMENT OF THE ISSUES
I. Whether the Authority properly determined that PBGC established a legitimate
justification for termination of petitioner's employment.
II. Whether the Authority, based upon its analysis of similarly situated
employees, properly determined that the agency's termination of petitioner's
employment did not constitute disparate treatment.
III. Whether the Authority properly excluded new evidence concerning
employees not mentioned in earlier proceedings and whether petitioner's previous
contacts with one of the Authority Members required that Member's recusal.
STATEMENT OF THE CASE
I. Nature of the case
This case arose as an unfair labor practice (ULP) proceeding concerning
allegations that the Pension Benefit Guaranty Corporation ("PBGC" or
"agency") violated section 7116(a)(1) and (2) of the Statute by discharging
Power because he engaged in union activities protected by section 7102 of
the Statute. The case was first heard by an Administrative Law Judge
("ALJ") who concluded that the General Counsel of the FLRA ("General
Counsel") failed to prove by a preponderance of the evidence that Power was
discharged for engaging in protected activity and recommended that the ULP
complaint be dismissed. (JA 31.) The Authority reversed the ALJ's
conclusion and found that PBGC had discharged Power in violation of the
Statute. Pension Benefit Guaranty Corp., 39 FLRA 905 (1991) (PBGC I); JA 1.
On appeal, this Court found that the Authority had inadequately explained
its reasons for concluding that Power received disparate treatment as a
result of his protected activity. PBGC v. FLRA, 967 F.2d 658 (D.C. Cir.
1992). As a result, the Court remanded the case to the Authority for
further analysis of the disparate treatment issue, including, as part of
that analysis, further definition of "similarly situated" employees. Id. at
670.
Finding the record before it insufficient to make the determinations the
Court required, the Authority remanded the case to the ALJ to hear
additional evidence, and, consistent with the Court's opinion, to determine
whether Power was subject to disparate treatment. Pension Benefit Guaranty
Corp., 47 FLRA 595, 599-501 (1993) (PBGC II); RA 1200, 1204-06. The ALJ's
decision on remand found that Power was not subjected to disparate treatment
and recommended that the complaint be dismissed. PBGC III, RA 1217.
In its final decision, the Authority dismissed the complaint based upon its
finding that Power was not disparately treated and therefore that PBGC did
not commit the ULPs alleged in the complaint. PBGC III, RA 1219. Power has
petitioned this Court for review of the Authority's order dismissing the
complaint.
II. Statement of the facts
The facts of this case are set forth in detail in the prior Authority
decisions, particularly PBGC I, JA 2-14, as well as in this Court's
decision, PBGC v. FLRA, 967 F.2d at 659-663. For ease of reference, the
pertinent facts are again set out below.
A. Power's employment at PBGC and facts prompting his discharge
David Power was employed as a GS-14 General Attorney in PBGC's Office of
General Counsel (OGC) from 1980 until his discharge on April 3, 1989.
Beginning in 1984 and continuing until his discharge, Power served as the
President of Local Chapter 211 of the National Treasury Employees Union
("NTEU" or "union"). PBGC v. FLRA, 967 F.2d at 659; PBGC I, JA 2.
On April 3, 1989, Power was discharged for misconduct that occurred between
May and December 1988. 967 F.2d at 659-62; PBGC I, JA 2-11. As explained
in the Authority's PBGC III decision,
[s]pecifically, he was discharged for: (1) insubordination based on his (a)
failure to follow an "OGC Concurrence Matrix," (b) refusal to accept computer
messages from an immediate supervisor, (c) failure to supply a representative
writing sample to the Deputy General Counsel, and (d) refusal to return computer
survey data and failure to provide a written explanation for his refusal; (2)
failure to cooperate in an official investigation; (3) threatening an employee
with grave physical harm and interfering with the employee's statutory rights;
(4) making a false statement in an official investigation; and (5) conversion of
Government property.
RA 1219.[3] In PBGC III, the Authority determined that "Power's insubordinate
conduct provided PBGC with a legitimate justification for his discharge." RA
1229. Because of that holding, only the facts regarding Power's insubordinate
conduct are set forth below.
1. Failure to follow OGC concurrence matrix
The OGC maintains a concurrence, or "sign-off," matrix ("Concurrence
Matrix") that requires supervisory concurrence on all correspondence and
other documents going out of the office. PBGC v. FLRA, 967 F.2d at 660;
PBGC I, JA 2. Power failed to follow the Concurrence Matrix's requirements
on August 11 and 18, 1988, when he sent documents out of OGC without
obtaining the prior review or concurrence of his immediate supervisor,
Assistant General Counsel Jeanne Beck ("AGC Beck"). 967 F.2d at 660; PBGC
I, JA 3.
AGC Beck first admonished Power on August 24, 1988, regarding his August
11th violation of the OGC Concurrence Matrix requirement. Id. This
admonishment was in the form of a comprehensive electronic office ("CEO")
message via computer. PBGC I, JA 3; see SA-6 941. AGC Beck admonished
Power for the August 18th incident in a September 9, 1988 memorandum in
which she reminded Power that "all matters require supervisory concurrence"
and that she expected to see "all documents" before they were sent out of
OGC. SA-6 942; PBGC III, RA 1230.
Power failed for a third time to follow the matrix's requirements on
November 29, 1988, when he sent two letters to opposing counsel without
supervisory concurrence. Power also instructed a clerical staff person to
disregard the concurrence requirement. 967 F.2d at 660; PBGC I, JA 3. On
December 1, 1988, AGC Beck sent a memorandum to Power, again reminding him
of the OGC concurrence matrix and noting that Power's repeated
noncompliance, coupled with his instructions to a staff person to disregard
the established office policy, was "inexcusable." Id.; see SA-6 938.
2. Failure to supply a representative writing sample
On May 25, 1988, Power received his performance appraisal for the period
December 9, 1987 to May 12, 1988. As permitted under PBGC procedures, the
appraisal was sent to Power's second level supervisor, Deputy General
Counsel Carol Connor Flowe ("DGC Flowe"), for review after Power appended
comments to the appraisal.[4] PBGC v. FLRA, 967 F.2d at 659; PBGC I, JA 4.
In order to review Power's rating for consistency, DGC Flowe sent a CEO
message to AGC Beck on June 15, 1988, explaining that she was reviewing
Power's performance appraisal and requesting a representative sample of his
writing. Id. AGC Beck forwarded the CEO message to Power and directed his
compliance. PBGC I, JA 4. Power responded by memorandum to DGC Flowe,
asking the purpose of her request, id., and stating that some of the
documents DGC Flowe requested "may be located in the file room of the OGC."
SA-6 949.
The next morning DGC Flowe contacted Power directly. PBGC v. FLRA, 967 F.2d
at 659; PBGC I, JA 4. She told Power that she was the reviewing official on
his performance appraisal and directed him to comply with her request. PBGC
I, JA 4. In response, Power submitted over 2,100 unstapled pages of
miscellaneous documents. 967 F.2d at 659-60; PBGC I, JA 4.
DGC Flowe was "appalled" at Power's response and had the materials returned
to him. DGC Flowe then sent Power a memorandum explaining why she was
returning the materials and asking again for a representative sample of his
writing. Over a month later, Power resubmitted the same 2100 pages of
materials to DGC Flowe, indicating in a cover memorandum that those
documents bore on his performance during the rating period. 967 F.2d at
660; PBGC I, JA 5.
DGC Flowe returned Power's submission, again requesting a representative
sample of his writing. Id. Two and a half months later, Power responded,
giving DGC Flowe about 25 of his written documents. Id. However, Power
disclaimed any characterization of the documents as being a "sample" or
representative. Id. DGC Flowe "gave up" at that point and raised Power's
performance rating. 967 F.2d at 660.
3. Refusal to relinquish copies of PBGC's computer survey data
In the spring, summer, and fall of 1988 the union and the agency were
negotiating office space and ergonomic furniture for OGC attorneys. PBGC v.
FLRA, 967 F.2d at 661; PBGC I, JA 5. In August 1988, Power obtained
computer survey data from an unauthorized source.[5] 967 F.2d at 661; PBGC
I, JA 6. In September 1988, PBGC's Director of Personnel directed Power to
return the computer surveys, and twice in October 1988, AGC Beck directed
Power to return the computer surveys. 967 F.2d at 661; PBGC I, JA 7-8.
Power refused to comply with these three orders. Id.; PBGC III, RA 1233.
4. Power's failure to cooperate in an official investigation
Based upon agency concerns and questions regarding Power's access to the
computer surveys, PBGC decided to conduct an investigatory interview of
Power on October 18, 1988. PBGC v. FLRA, 967 F.2d at 661; PBGC I, JA 9. On
the day of the interview, Power asked for and received a Kalkines
warning.[6] (Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973)). 967
F.2d at 661. Despite this grant of immunity, on several occasions Power
refused to answer AGC Beck's questions. Id.; PBGC III, RA 1234. Further,
as the interview proceeded, Power dared AGC Beck to discipline him for
refusing to cooperate in the interview. Power eventually terminated the
interview by rising from his chair and stating that he was finished
answering questions. 967 F.2d at 662; PBGC I, JA 10.
5. Refusal to accept computer messages
At PBGC, the CEO message system indicates when an employee deletes--or
"refuses"--a message without reading it. 967 F.2d at 660; PBGC I, JA 3. On
December 8, 1988, Power "refused" a CEO message that AGC Beck had sent on
November 28 regarding the scheduling of a case meeting between AGC Beck and
Power. PBGC I, JA 3; SA-6 945. In a later CEO message sent that same day,
and also refused by Power, (PBGC I, JA 3; SA-6 946), AGC Beck admonished
Power for the prior message refusal and deletion, and noted that it was the
second or third message he had refused. PBGC I, JA 3; SA-6 1178. In
addition, the following day AGC Beck sent Power a CEO message demanding a
written explanation of his last two refusals of her CEO messages. Power
responded: "I was busy with the Kaiser brief the entire week. Was there
something urgent you wanted?" PBGC I, JA 4; SA-6 947.
B. The Removal of Power
AGC Beck decided to propose the removal of Power because, as she later
testified, his "insubordination was repetitive, defiant almost to the point
of contempt," he had demonstrated "an inability to comply with [established]
procedures," and his actions demonstrated a "lack of integrity" and
professional and personal judgment expected of an attorney at the GS-14
level. SA-4 669. According to AGC Beck, and not contested, during the time
the notice of removal was being drafted, Power was continuing to delete
messages from his computer without reading them and was failing to adhere to
the Concurrence Matrix. PBGC v. FLRA, 967 F.2d at 662; PBGC I, JA 11.
On January 19, 1989, Power was given a Notice of Proposed Removal setting
forth specific charges of misconduct. Id.; SA-6 909. David Lindeman, an
attorney and Director of the PBGC's Corporate Policy and Research
Department, served as the Oral Reply Official. After careful consideration
and evaluation of the charges against Power, Lindeman submitted a written
recommendation that AGC Beck's findings be upheld in their entirety. He
concluded that the proposed penalty of removal was warranted and should be
implemented. 967 F.2d at 662; PBGC I, JA 12.
On April 3, 1989, DGC Flowe upheld the proposed removal, accepting
Lindeman's recommendation that AGC Beck's charges be sustained in their
entirety. Id. After weighing the severity of Power's misconduct against
mitigating factors and noting that Power was an attorney in a responsible
position who was held to a high standard of conduct, DGC Flowe concluded
that Power was either "unable or unwilling to conform his behavior to that
high standard." 967 F.2d at 663; PBGC I, JA 54.
NTEU brought a ULP charge on Power's behalf, alleging that he had been
discharged in violation of section 7116(a)(1) and (2) of the Statute[7] for
engaging in protected activity under section 7102.[8] The General Counsel
issued a complaint.
III. Proceedings below
A. The ALJ's and Authority's original decisions in PBGC I
In his original decision, the ALJ determined that the ULP complaint against
PBGC should be dismissed. PBGC I, JA 61. In the ALJ's view, the FLRA's
General Counsel failed to show that Power's discharge was motivated by
protected union activity under the Statute. PBGC I, JA 59-60.
The Authority reversed the ALJ's conclusion, finding that PBGC discharged
Power in violation of the Statute. PBGC I, JA 2. Based upon its analysis
of the unlawful discrimination framework set forth in Letterkenny Army
Depot, 35 FLRA 113 (1990) (Letterkenny),[9] the Authority concluded that the
General Counsel established a prima facie showing that Power was engaged in
protected activity and that his discharge was motivated by Power's protected
activity. PBGC I, JA 19.
The Authority then applied Letterkenny's second prong. The Authority found
that, even assuming the agency established a "legitimate justification" for
taking some form of discipline against Power, an issue it did not rule upon,
the agency did not demonstrate that it would have taken the same action in
the absence of protected activity. PBGC I, JA 26-27. As a result, the
Authority concluded that Power had been disparately treated.
B. This Court's decision in PBGC v. FLRA
In PBGC v. FLRA, the Court remanded the case to the Authority for further
consideration. Using the Authority's Letterkenny framework, the Court first
held that it "need not decide whether the [General Counsel] made out a prima
facie case because . . . PBGC demonstrated that it would have fired Power
absent . . . union animus. PBGC v. FLRA, 967 F.2d at 666. The Court found
implicit in the Authority's determination that "Power engaged in
insubordinate acts," (citing PBGC I, JA 26), the recognition that "PBGC had
a 'legitimate justification for its action.'" Id. (quoting Letterkenny, 35
FLRA at 118).
Recognizing that a finding of legitimate justification "does not end [the]
inquiry" under Letterkenny, the Court then examined whether PBGC had shown
that "it would have discharged Power 'even in the absence of protected
activity.'" Id. at 667 (quoting Letterkenny, 35 FLRA at 118). In this
regard, the Court considered whether Power's punishment was harsher than
that given to other employees and whether the other employees to whom he was
compared were similarly situated. Id.
The Court determined that it could not uphold PBGC I because the Authority's
decision was "inadequately explained," id., and therefore remanded the case
to the Authority. Id. at 670. Specifically, the Court found inadequate the
Authority's analysis of the "similarly situated status of the employees
being compared," which the Court termed the "linchpin of the disparate
treatment analysis." Id. at 667, 670.
Based upon its analysis of the record evidence, the Court rejected the
FLRA's finding that Employee No. 1 and Power were similarly situated as
unsupported by substantial evidence. Id.
The Court was "troubled" by the Authority's "assumption" that the misconduct of
the two employees (Employee No. 1 and Power) was the sole factor PBGC
considered, or could consider, in imposing a sanction. Id. at 668. It thus
referenced judicial and administrative precedents as well as regulations that
recognize the relevance of many factors in determining an appropriate sanction,
including the factors established in the Merit Systems Protection Board's
("MSPB") Douglas v. Veterans Administration decision (5 MSPB 313, 330-33) (1981)
(Douglas)). 967 F.2d at 668.
Upon further consideration of the record evidence, the Court questioned the
absence of a reasoned explanation as to why Employees Nos. 7, 9, and 10,
three non-lawyer, non-OGC employees, were similarly situated to Power. PBGC
v. FLRA, 967 F.2d at 668-69. Again referencing the Douglas factors, the
Court opined that the agency may have been entitled to hold Power to a
higher standard of conduct than clerks and technicians. Id. With regard to
Employee No. 6, the Court viewed Employee No. 6's transgressions as "at
least comparable" to Power's failure to follow the concurrence matrix and
thus questioned why the Authority never mentioned Employee No. 6 as being
similarly situated. PBGC v. FLRA, 967 F.2d at 669-70. Finally, the Court
questioned the Authority's attempt to distinguish Employee No. 8 from Power
based on warnings given to Employee No. 8 and not to Power. The Court
expressly recognized Power's receipt of warnings and his more than ample
notice that his conduct was unacceptable. Id. at 670 n.15.
Finding that the Authority had "failed to define 'similarly situated' in
conducting its disparate treatment analysis," the Court remanded the case to
the Authority "for proceedings not inconsistent with [its] opinion,
including the direction that the FLRA consider Employee [No.] 6 in
conducting its disparate treatment analysis." Id. at 670.
C. The Authority's PBGC II decision remanding the case to the ALJ
The Authority remanded the case to the ALJ for further proceedings because
it found the record insufficient to make the determinations required by the
Court's remand. PBGC II, RA 1204, 1206. Highlighting specific areas in
which the record was inadequate, the Authority thus directed the ALJ to
"hear additional evidence to decide whether Power was similarly situated to
Employees Nos. 1, 6, 7, 9, and/or 10 and, based on the evidence . . .
determine . . . whether Power was subject to disparate treatment." PBGC II,
RA 1205-6.
The Authority provided guidance as to considerations it deemed relevant in
determining whether employees were "similarly situated" for purposes of its
disparate treatment analysis. Referencing private sector case law, the
Authority found it relevant to compare: 1) the nature of the misconduct, 2)
the positions the employees occupied, 3) the employees' past disciplinary
records, and 4) the extent to which employees were previously warned that
their conduct may result in discipline. PBGC II, RA 1204. The Authority
also found it appropriate to consider the elements in Douglas "that are
relevant to a particular adverse action decision and the extent to which a
respondent consistently relied on the Douglas elements."[10] Id.
D. The ALJ's remand decision
On remand, the ALJ again concluded that Power's discharge had not been the
product of a ULP. RA 1217. Noting that he applied the factors set forth in
this Court's decision, id. at 1215 n.4, the ALJ found that Power was not
similarly situated to Employees Nos. 1, 7, 9, and 10, but that he was
similarly situated to Employee No. 6. RA 1216-17. He then determined that
Power was given a "like penalt[y] for the same indiscretions" as Employee
No. 6, to whom Power was similarly situated, and that Power was given a
stronger penalty than Employees Nos. 1, 7, 9, and 10, to whom Power was not
similarly situated. Id. As a result, the ALJ determined that the General
Counsel failed to prove that Power was disparately treated. RA 1217. He
thus recommended that the ULP complaint be dismissed. Id.
E. The Authority's decision in PBGC III
Agreeing with the ALJ, the Authority decided in PBGC III that PBGC did not
commit the ULPs alleged in the complaint and therefore dismissed the
complaint. PBGC III, RA 1219. In reaching this conclusion, the Authority
found that PBGC had established that Power's insubordinate conduct
constituted a legitimate justification for his discharge. RA 1229. The
Authority also analyzed the "similarly situated" status of Employees Nos. 1,
6, 7, 8, 9, and 10,[11] in light of the factors it established in PBGC II
and, consistent with the Court's remand, determined that Power was not
disparately treated. RA 1235.
As a preliminary matter, the Authority first addressed the ALJ's decision
not to reopen the record to admit evidence regarding employees to whom Power
had not previously been compared. RA 1226. Based upon the considerable
discretion given to ALJ's in determining whether the record should be
reopened for new evidence, as well as the general public policy
consideration against reopening records, the Authority concluded that the
ALJ did not abuse his discretion when he refused to admit the newly offered
evidence. RA 1226-28.
The Authority then considered the legitimate justification issue. RA 1229.
After reviewing relevant case law, the Authority concluded that
insubordinate conduct justifies removal. Id. It then determined that the
record evidence supported a finding "that Power engaged in a pattern of
conduct justifying his removal," and that this insubordinate conduct was
"independent of any protected activity." RA 1230.
In response to the Court's remand direction that the Authority reexamine
whether Power was treated disparately, the Authority went on to reconsider
the record evidence with regard to Employees Nos. 1, 6, 7, 8, 9, and 10 in
light of the "similarly situated" factors it set forth in PBGC II. RA 1235.
Based upon its reexamination of the evidence in this regard, the Authority
concluded that Power was not disparately treated. Id.
The Authority first considered the evidence with regard to Employee No. 6
and found that Power and Employee No. 6 were similarly situated. The
Authority concluded that their work and disciplinary records were
comparable; both were senior attorneys in PBGC's OGC who had worked at PBGC
for comparable amounts of time; both possessed recognized legal talents; and
neither attorney had a prior disciplinary record. Noting that Employee No.
6's offenses were less severe in quality and quantity, the Authority
nonetheless found those offenses to be similar to Power's. Both employees'
offenses involved failure to obtain supervisory clearance, and both
employees failed to do so even after repeated warnings. RA 1237.
Having found that Power and Employee No. 6 were similarly situated, the
Authority then compared the treatment received by the two employees and
concluded that "Power was not disparately treated." Id. The Authority
specifically determined that the "clear connection between Employee No. 6's
erroneous actions and his forced departure from PBGC"[12]--the compulsory
aspect of his removal being significant to the Authority--supported the
conclusion that Power was not disparately treated. RA 1237-38. The
Authority next considered whether Power was similarly situated to Employee
No. 1. Acknowledging that Power and Employee No. 1 both occupied GS-14
attorney positions in the OGC and that they engaged in "misconduct that is
in some respects comparable," the Authority nonetheless determined that
"significant differences between Power and Employee No. 1 demonstrate that
the employees were not, in the final analysis, similarly situated." RA
1239.
A key difference for the Authority, as it had been with the Court, was the
difference in the supervisors' confidence in the two employees. The record
was "replete with indications that Power's supervisors had lost confidence
in his ability" to continue to perform effectively, whereas Employee No. 1's
supervisor "indicated a continuing confidence" in the employee's ability to
perform his duties. Id. Further, Power's supervisors saw little potential
for rehabilitation in Power, but Employee No. 1's supervisor concluded that
he had the potential for rehabilitation and was contrite. RA 1239-40.
Because of the expectation that discipline of employees will serve a
"constructive purpose," the Authority "ascribe[d] significant weight to the
factors of supervisory confidence and potential for rehabilitation." RA
1241. The dissimilarities between Power and Employee No. 1 in this regard
resulted in the Authority's finding that these employees were not similarly
situated. Therefore, their differing disciplinary actions did not indicate
that Power was disparately treated.[13] RA 1241-42.
Finding "sufficient similarities between Power's case and that of Employee
No. 8," the Authority concluded that these employees were similarly
situated.[14] RA 1242. Although Employee No. 8 was not an attorney, the
Authority noted that he was "a professional, an auditor, who held a position
of responsibility and trust." RA 1243. Like Power, Employee No. 8 was
"ultimately removed for a number of instances of generally insubordinate
conduct that manifested itself in various forms." Id. Both employees lost
the confidence of their supervisors, to include little hope for
rehabilitation. The Authority also found, as the Court had pointed out,
that both Power and Employee No. 8 received numerous warnings that their
conduct was unacceptable. Concluding that these similarly situated
employees "suffered the same ultimate penalty in comparable circumstances,"
the Authority found that Power was not disparately treated. Id.
Finally, the Authority determined that Power was not similarly situated to
Employees Nos. 7, 9, and 10. RA 1243-44. In making this determination, the
Authority agreed with the ALJ's finding that Employees Nos. 7, 9, and 10
were not lawyers, did not work in the same department nor under the same
supervision, were disciplined for fighting rather than insubordination, and
had different grades and responsibilities. RA 1244. Because the employees
were not similarly situated to Power, the lighter penalties given to
Employees Nos. 7, 9, and 10 did not indicate that Power was disparately
treated. Id.
STANDARD OF REVIEW
The standard of review of decisions of the Authority is narrow: Authority
action shall be set aside only if "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law[.]" 5 U.S.C. §§ 7123(c)
and 706(2)(A). Overseas Educ. Ass'n v. FLRA, 858 F.2d 769, 771-72 (D.C. Cir.
1988); EEOC v. FLRA, 744 F.2d 842, 847 (D.C. Cir. 1984), cert. dismissed,
476 U.S. 19 (1986). Under this standard, unless it appears from the Statute
or its legislative history that the Authority's construction of its enabling
act is not one that Congress would have sanctioned, the Authority's
construction should be upheld. See Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 844 (1984); see also Fort
Stewart Sch. v. FLRA, 495 U.S. 641 (1990).
Further, factual findings of the Authority that are supported by substantial
evidence on the record as a whole are conclusive. 5 U.S.C. § 7123(c);
National Treasury Employees Union v. FLRA, 721 F.2d 1402, 1405 (D.C. Cir.
1983) (NTEU v. FLRA). The Authority is entitled to have reasonable
inferences it draws from its findings of fact not be displaced, even if the
court might have reached a different view had the matter been before it de
novo. See AFGE Local 2441 v. FLRA, 864 F.2d 178, 184 (D.C. Cir. 1988) (AFGE
Local 2441); see also LCF, Inc. v. NLRB, 129 F.3d 1276, 1281 (D.C. Cir.
1997) (LCF).
Finally, as the Supreme Court has stated, the Authority is entitled to
"considerable deference when it exercises its 'special function of applying
the general provisions of the [Statute] to the complexities' of federal
labor relations." Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S.
89, 97 (1983).
SUMMARY OF ARGUMENT
The Authority properly determined that PBGC had a legitimate justification
for discharging Power and that Power's discharge did not constitute
disparate treatment. The Authority's determination is fully consistent with
this Court's original decision remanding the case to the Authority for
further consideration.
As a general matter, insubordinate conduct is a legitimate justification for
discharging an employee. With regard to Power's actual insubordinate
conduct, substantial evidence, which is essentially undisputed, supports the
Authority's determination that the agency had a legitimate justification for
removing him.
Contrary to Power's assertions, his admitted misconduct cannot be excused as
"protected activity." None of Power's insubordinate misconduct was based
upon actions authorized by a specific provision in the parties' collective
bargaining agreement, as would be required to excuse misconduct under City
Disposal. Further, Power's misconduct is not excusable under the
Authority's "flagrant misconduct" precedent because, among other things, it
did not occur while he was engaging in activities specifically on behalf of
the bargaining unit.
The Authority also properly determined that Power was not disparately
treated. Based upon factors drawn from NLRB and MSPB precedent, and
consistent with this Court's original remand decision, the Authority
correctly analyzed whether particular employees were "similarly situated" to
Power. Specifically, substantial evidence supports the Authority's finding
that Power was similarly situated to Employees Nos. 6 and 8 who, like Power,
were compelled to depart PBGC. Further, the Authority correctly determined
that Power was not similarly situated to Employees Nos. 1, 7, 9, and 10, who
received lesser sanctions.
Finally, arguments raised by Power regarding the Authority's exclusion of
new evidence concerning employees not mentioned in earlier proceedings, and
alleged bias by an Authority Member, are without merit. With regard to
Power's attempt to reopen the record, case law establishes that such
reopenings should occur only in extraordinary circumstances not present in
this case.
With regard to the bias allegation, Power's argument, based on an asserted
prior contact between Power and the Member, was not raised before the
Authority and therefore cannot be considered by this Court. Further and in
any event, the circumstances alleged by Power would not require recusal.
Finally, Power's argument is without foundation because the Member was not
aware of the alleged contact at the time he participated in the decision in
this case.
ARGUMENT
In determining that PBGC's discharge of Power did not violate section
7116(a)(1) and (2) of the Statute, the Authority carefully considered the
analytical framework for resolving complaints of alleged discrimination as
set forth in Letterkenny. The Authority found no need to revisit its
earlier finding and the Court's assumption concerning the first prong of
Letterkenny. PBGC III, RA 1229. Rather, consistent with the Court's remand
order, the Authority focused on the second prong of Letterkenny--PBGC's
burden of proving, "by a preponderance of the evidence, as an affirmative
defense that: (1) there was a legitimate justification for its action; and
(2) the same action would have been taken even in the absence of protected
activity . . . ." Id. The Authority held that "PBGC had a legitimate
justification for discharging Power" and that "the record establishes that
PBGC would have taken the same action even in the absence of Power's
protected activity." Id.
I. The Authority properly determined that PBGC established a legitimate
justification for Power's discharge
The Authority properly held that "Power's insubordinate conduct provided
PBGC with a legitimate justification for his discharge." PBGC III, RA 1229.
In making this determination the Authority first considered whether
insubordinate conduct, in general, justifies removal from employment.
Second, the Authority reviewed the record to determine whether the
insubordinate conduct alleged by PBGC was supported by record evidence.
A. Insubordination is a legitimate justification for discharge
The Authority found that "[i]t is within an employer's legitimate
prerogative to discipline an employee for insubordinate conduct,
notwithstanding the employee's involvement in protected activity." PBGC
III, RA 1229.[15] The Authority relied in this connection upon precedent
from the Authority, the National Labor Relations Board ("NLRB"), and the
MSPB.[16]
For example, the MSPB has held, "[a]n employee's deliberate refusal to
follow supervisory instructions constitutes serious misconduct that cannot
properly be condoned." Redfearn, 58 MSPR at 316. In fact, "[i]nsolent
disrespect towards supervisors so seriously undermines management's capacity
to maintain employee efficiency and discipline that no agency should be
expected to exercise forbearance for such conduct more than once." Id.
Further, the Authority's conclusion that Power's insubordinate conduct was a
legitimate justification for his termination comports with the Court's
determination in PBGC v. FLRA. In that regard, the Court noted that
implicit in the Authority's concession in PBGC I that "'Power engaged in
insubordinate acts,' . . . is a recognition that PBGC had a 'legitimate
justification for its action.'" PBGC v. FLRA, 967 F.2d at 666 (quoting
Letterkenny, 35 FLRA at 118).
B. Substantial evidence supports the Authority's determination that Power's
insubordinate conduct was a legitimate justification for his removal
1. The Authority's factual findings with regard to Power's conduct are not
disputed
Holding that insubordinate conduct justifies removal, the Authority then
correctly concluded that Power's insubordinate conduct was a legitimate
justification for his removal. It was undisputed before the Authority that
Power,
contrary to supervisory instructions and office policy, (a) failed to follow the
OGC's Concurrence Matrix; (b) failed to supply a representative writing sample
requested by one of his supervisors; (c) refused to relinquish all copies of
PBGC's computer survey data; (d) failed to cooperate in an official
investigation; and (e) refused to accept computer messages from his supervisors.
PBGC III, RA 1230.
Petitioner does not contest, in any respect, the Authority's findings
regarding his insubordinate conduct for failure to follow the OGC's
Concurrence Matrix, or his refusal to accept computer messages from his
supervisors. Significantly, petitioner concedes that these aspects "of the
allegations of insubordination . . . have merit aside from protected
activity." (Brief at 22.)
Instead, petitioner contends that certain aspects of his admitted misconduct
should be excused because he was engaged in "protected activity." See,
e.g., Brief at 18 (insubordination with regard to the writing samples and
the computer survey data was "protected activity"); Brief at 22 ("charges
relating to the writing sample and the computer survey [including failure to
cooperate in official investigation] must be disregarded because they
involved protected conduct").
2. Power's insubordinate conduct was not protected activity under the
Supreme Court's City Disposal decision and the Authority's Bassan
decision, nor was it excusable under precedent relating to "flagrant
misconduct"
Neither the Supreme Court's decision in NLRB v. City Disposal, Inc., 465
U.S. 822 (1984) (City Disposal), nor the Authority's decision in Department
of Labor, Employment & Training Administration and Lou Ann Bassan, 43 FLRA
1036 (1992) (Bassan), provides a shelter for Power's insubordinate refusal
to provide writing samples, to return the improperly obtained computer
survey data, or to cooperate in an official investigation when questioned
about the computer survey data.[17] In City Disposal and Bassan, the
Supreme Court and the Authority, respectively, found limited protections
under the National Labor Relations Act ("NLRA") and the Statute for
employees to engage in certain activities that would otherwise be
sanctionable.
Specifically, in City Disposal, the Supreme Court upheld the NLRB's
Interboro doctrine, which provides that "an individual's assertion of a
right grounded in a collective-bargaining agreement is recognized as
'concerted activity'" and therefore is accorded the protections of the NLRA.
465 U.S. at 829 (emphasis added). City Disposal involved the discharge of
an employee after he refused to drive a truck that he believed to be unsafe
because of faulty brakes. Id. at 828. A specific provision in the
collective bargaining agreement provided that the employer could not require
employees to operate any vehicle that was not in safe operating condition.
Id. The Court determined that because there was no doubt that in refusing
to drive the truck the employee was invoking a right explicitly granted him
in his collective bargaining agreement, the employee was therefore engaged
in "concerted activity." Id. at 839-41.
Relying on City Disposal in Bassan,[18] the Authority determined that an
employee was wrongfully terminated for exercising a right specifically
granted by the applicable collective bargaining agreement to submit comments
to her supervisor regarding performance standards. Bassan, 43 FLRA at 1037;
see also 43 FLRA at 1047, 1056, 1061. Based upon careful consideration of
the Supreme Court's rationale in City Disposal and of the propriety of
applying the principles of that decision to federal sector labor law, the
Authority held that "when an individual employee asserts a right that
emanates from a collective bargaining agreement, that employee is engaging
in the protected activity under section 7102 of the Statute of assisting the
union that negotiated the agreement." Id. at 1039.
Petitioner has not established that his misconduct with regard to the
writing samples and computer surveys satisfies the stringent requirements of
City Disposal and Bassan. The conduct found to be excusable in City
Disposal was based on a specific contract provision. As the Supreme Court
in City Disposal repeatedly stated, in order for an individual's conduct to
be "concerted activity," the employee must invoke a right "grounded" or
"rooted" in the collective bargaining agreement. 465 U.S. at 831-32; see
also Bassan, 43 FLRA at 1059. Similarly, the protected conduct in Bassan
was specifically allowed by a provision of the collective bargaining
agreement. The discipline of the employee was improper because the employee
was "discharged for asserting a contractual right." Id. at 1040.
In arguing that failure to comply with DGC Flowe's requests for writing
samples is protected activity, petitioner asserts that he was actively
engaged in a grievance over the subject matter for which the writing samples
were requested. (Brief at 19.) With regard to the misconduct associated
with the computer survey data, petitioner asserts that his actions were
undertaken for the purpose of representing the bargaining unit in
negotiations. However, petitioner does not identify a specific contract
provision that authorizes either his refusal to comply with DGC Flowe's
clear, repeated requests for writing samples, or his theft of and refusal to
return the computer survey data.
Petitioner self-servingly attempts to broaden the purposefully narrow basis
on which City Disposal and Bassan were premised. These cases stop far short
of protecting any activity merely related, in some protracted way, to the
collective bargaining agreement. Neither the Supreme Court nor the
Authority has afforded protection to activities that are at most
tangentially related to collective bargaining. Rather, City Disposal and
Bassan only protect otherwise sanctionable conduct when it implicates a
specific collectively bargained right of unit employees. See, e.g., Prill
v. NLRB, 835 F.2d 1481, 1483 (D.C. Cir. 1987) (the collective bargaining
agreement provides the link between workers that merits protection for the
actions of an individual employee exercising specific rights in its
provisions).
Equally unavailing is petitioner's claim (Brief at 24-26) that his
misconduct relating to the writing samples and computer survey data should
be excused under Authority precedent regarding "flagrant misconduct." Under
this precedent, management has a right to discipline a union representative
for misconduct "which [is] 'not specifically on behalf of the exclusive
representative or which exceed[s] the boundaries of protected activity such
as flagrant misconduct.'" U.S. Air Force Logistics Command, Tinker Air
Force Base, Oklahoma City, OK, 34 FLRA 385, 388-89 (1990) (Tinker AFB)
(quoting Long Beach Naval Shipyard, Long Beach, California and Long Beach
Naval Station, Long Beach, California, 25 FLRA 1002, 1005 (1987) (Long
Beach)) In Tinker AFB, the Authority held to be unjustified the reprimand
of a union representative for refusal to leave the work area while serving
copies of ULP charges because the activity was clearly undertaken on behalf
of the union and there was no evidence of flagrant misconduct. Id. at 390.
There is nothing about Power's repeated refusal to obey a clear direction to
provide writing samples, or the theft of documents and refusal to return
those documents when so ordered, that could properly be considered activity
specifically on behalf of the union. In any event, actions like Power's
theft and refusal to return documents are properly characterized as
"flagrant misconduct."[19] As the Authority has stated in this latter
connection, when conduct is "'totally unprofessional and not befitting that
which is expected of a representative of the Union,'" it "exceed[s] the
boundaries of protected activity" and constitutes "flagrant misconduct."
U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and AFGE
Local 916, 35 FLRA 1146, 1152 (1990) (citation omitted). Further, the
Authority has noted that "[t]he Statute's protections were not intended to
insulate employees from the consequences of behavior" of a criminal nature.
Long Beach, 25 FLRA at 1006.
In sum, petitioner does not dispute the Authority's factual determinations
in finding that PBGC had a legitimate justification for removing him. In
addition, Power has not demonstrated that his conduct constitutes excusable
protected activity under City Disposal and Bassan. Similarly, Power's
actions would not be excusable under case law relating to "flagrant
misconduct."
II. The Authority, based upon its analysis of similarly situated employees,
properly determined that the agency's termination of petitioner's employment did
not constitute disparate treatment
A. The Authority, in accord with the Court's remand, correctly identified
appropriate factors to consider in conducting its disparate treatment
analysis
Consistent with the Court's remand decision, and reasonably relying upon
NLRB and MSPB precedent, the Authority correctly identified appropriate
factors to consider in determining whether employees were "similarly
situated," for purposes of its disparate treatment analysis under the
Statute. The factors applied by the Authority were set forth in its PBGC II
decision. PBGC II, RA 1204. As discussed supra at p. 16, these relevant
factors were drawn from NLRB disparate treatment cases as well as the MSPB's
Douglas decision. Id.
Petitioner's argument (Brief at 41) that the Douglas factors have no bearing
on federal sector ULP cases is erroneous. When the Authority determined
that the Douglas factors, among others, were relevant in deciding whether
employees were similarly situated, the Authority heeded the sound reasons
offered by this Court favoring use of those factors for that purpose. PBGC
v. FLRA, 967 F.2d at 668.[20] As the Court indicated, it is well
established that the Douglas factors, among others, are relevant in the
related context of determining appropriate sanctions for employee
misconduct. Id. Petitioner does not advance any reason for rejecting this
aspect of the Court's decision in PBGC II.
As the Court's approval of their use indicates, the Douglas factors are
well-suited to the role that the Authority determined they should play in
cases like this. Developed by the MSPB, the "primary body for resolving
disputes over adverse personnel actions" in the federal sector, Department
of Treasury, Office of Chief Counsel v. FLRA, 873 F.2d 1467, 1469 (D.C. Cir.
1989), the Douglas factors provide a proven means for analyzing and
comparing the situations of employees against whom discipline might be, or
has been taken. Their use by the Authority as a tool in applying one step
of its Letterkenny disparate treatment analysis - to determine whether
particular employees were "similarly situated" - was therefore reasonable.
For these reasons, it cannot fairly be said, as petitioner alleges (Brief at
43), that the Authority's use of the Douglas factors, among others, for the
limited purposes specified constitutes "abdicat[ing] to the policies and
positions of the MSPB and the Federal Circuit in evaluating disparate
treatment . . . ."
B. The Authority's determination that Power was not disparately treated was
reasonable and is supported by substantial evidence
The Authority reasonably determined, based upon its analysis of similarly
situated employees, that Power was not disparately treated due to protected
activity, and that therefore the agency did not commit a ULP. Substantial
evidence on the record as a whole supports the factual findings therein.
This Court's "'task in reviewing substantial evidence questions is to
determine whether there is such relevant evidence as a reasonable mind might
accept as adequate to support the [Authority's] conclusion'" that Power was
not disparately treated as a result of his protected activity. Jim Walter
Resources, Inc. v. Secretary of Labor, 103 F.3d 1020, 1023-24 (D.C. Cir.
1997) (quoting Chaney Creek Coal Corp. v. Federal Mine Safety and Health
Review Commission, 866 F.2d 1424, 1431 (D.C. Cir. 1989) (Chaney Creek)). In
addition, if the Authority's factual findings are reasonable, "they may not
be displaced on review even if the court might have reached a different
result had the matter been before it de novo." LCF, Inc., 129 F.3d at 1281
(citations omitted).
1. Substantial evidence supports the Authority's reasonable finding that Power
was similarly situated to Employees Nos. 6 and 8 and not disparately treated
a. Employee No. 6
Substantial evidence on the record as a whole supports the Authority's
determination that Power was similarly situated to Employee No. 6.[21]
Petitioner does not contest the Authority's findings with regard to this
aspect of its disparate treatment analysis. Petitioner does, however,
contest the Authority's further finding, in connection with its disparate
treatment analysis, that Employee No. 6's departure was compelled by PBGC
and in this respect was comparable to Power's discharge. (Brief at 32-33.)
Contrary to petitioner's assertions, substantial evidence supports the
Authority's conclusion that Employee No. 6's departure was compelled. As
the decision reveals, the Authority relied upon considerable testimony of GC
Ford to this effect in making this determination.[22] PBGC III, RA 1236-38.
Petitioner's claim (Brief at 32) that GC Ford's testimony demonstrates that
Employee No. 6 "left PBGC's employ on his own terms" is erroneous. Even a
cursory review of GC Ford's testimony reveals that GC Ford did in fact take
steps to ensure Employee No. 6's departure. See, e.g., SA-13 2220-24.
Moreover, petitioner's mere disagreement with the Authority's interpretation
of the facts is immaterial, because the reasonable inferences that the
Authority draws from its findings of fact are not to be displaced. AFGE
Local 2441, 864 F.2d at 184.
Petitioner has not demonstrated that the Authority's determination with
regard to Employee No. 6 is unsupported by substantial evidence or in any
other respect defective. The Authority's determination concerning Employee
No. 6 should be upheld by this Court.
b. Employee No. 8
Petitioner does not raise any substantial evidence issues with regard to the
facts considered by the Authority in finding that Power was similarly
situated to Employee No. 8. Rather, petitioner quarrels with the
Authority's interpretation of these facts in making the similarly situated
determination. Because the Authority's interpretations were reasonable,
they are entitled to deference and should be upheld.
As the Authority determined, there are "sufficient similarities between
Power's case and that of Employee No. 8" to find them similarly situated.
PBGC III, RA 1242. For example, even though Power was an attorney and
Employee No. 8 was an auditor, the level of responsibility and trust
expected of them as professionals made them comparable. Also, the
employees' ultimate removal for a similar pattern of insubordinate
misconduct, the warnings each received, and their supervisors' loss of
confidence in them as well as the supervisors' belief that each had little
chance for rehabilitation all favor the result reached by the Authority.
Petitioner's argument that these similarities cited by the Authority are
"specious" is unfounded. The Authority expressly noted that there were some
distinctions between Employee No. 8 and Power, but thoroughly explained its
reason for finding the employees to be similarly situated. Because this
determination is reasonable, it is entitled to deference and should be
upheld by the Court. Similarly, because it is undisputed that both
employees were discharged, the Authority's finding that Power was not
disparately treated as a result of his comparable discharge from employment
is reasonable and should also be upheld.
2. Substantial evidence supports the Authority's finding that Power was not
similarly situated to Employees Nos. 1, 7, 9, and 10
a. Employee No. 1
Substantial evidence in the record regarding Employee No. 1 supports the
Authority's finding that there were "significant differences" between this
employee and Power that rendered them not similarly situated. See PBGC III,
RA 1239. Of particular relevance to the Authority in making this finding
was the difference in the supervisors' confidence in the two employees. As
the Authority noted, the record is "replete with indications that Power's
supervisors had lost confidence in his ability" to continue to perform
effectively, whereas Employee No. 1's supervisor "indicated a continuing
confidence" in the employee's ability to perform his duties. Id.
Similarly, there was little expectation of rehabilitation for Power, whereas
Employee No. 1's supervisor concluded that he had the potential for
rehabilitation and was contrite.[23] RA 1239-40.
Petitioner's disagreement with the Authority's determination that Employee
No. 1's supervisor viewed him as "contrite" should be rejected. As noted
above, the Authority made this finding based upon the testimony of Employee
No. 1's supervisor himself.[24] The record evidence cited by Power to
refute this finding by the Authority is a memorandum written by Employee No.
1's supervisor. SA-11 1896. Although the Authority's decision does not
expressly mention this memorandum, the Authority did evaluate the untrue
statements by Employee No. 1 that are recorded in this memorandum. PBGC
III, RA 1238. Nonetheless, the Authority determined that the weight of the
evidence showed that Employee No. 1 was viewed as contrite and that his
supervisor had confidence in his ability to perform his duties. For these
determinations there is ample record support.
Petitioner also argues (Brief at 31-32) that the warnings received by
Employee No. 1 and Power were not identical. The Authority carefully
analyzed the warnings received by both employees, and concluded that "[b]
ased upon our reexamination of the record, including the portion compiled on
remand, it appears that both employees had reason to know that their conduct
was improper." PBGC III, RA 1240 n.15. Petitioner concedes in this regard
(Brief at 31) that both employees received warnings. Petitioner's claim,
when considered in connection with his concession on the subject of warning,
does not demonstrate that the Authority's findings were unreasonable.
b. Employees Nos. 7, 9, and 10
As to Employees Nos. 7, 9, and 10, petitioner does not raise any substantial
evidence issues as to the Authority's finding that Power was not similarly
situated to these employees. Petitioner instead challenges (Brief at 35-36)
the Authority's interpretation of the facts, arguing that these employees'
misconduct--fighting--was more severe than Power's insubordination.
The Authority found these employees not to be similarly situated to Power
not only because their misconduct was different, but also because they were
not attorneys, did not work in the same department, and had different grades
and responsibilities than Power. Power's assertions focusing only on the
relative severity of their misconduct do not demonstrate that the
Authority's conclusions, reached on the basis of broader considerations, are
unreasonable. Accordingly, those findings are entitled to deference and
should be upheld by the Court.
III. Petitioner's arguments regarding Authority error in excluding new
evidence and Authority Member bias are without merit
A. The Authority properly upheld the ALJ's evidentiary rulings
Petitioner contends (Brief at 38-40) that the Authority erred in deciding
not to reverse the ALJ's exclusion of evidence concerning approximately
thirty employees who had not been mentioned in any earlier proceedings.
Petitioner's contention is based upon a misapprehension of the relevant case
law with regard to reopening records and should be rejected.
As the Authority recognized, "[a]s a general matter, motions to reopen a
record are disfavored." PBGC III, RA 1227. See INS v. Abudu, 485 U.S. 94,
107 (1988) (Abudu). According to the Supreme Court in Abudu, a key
consideration in determining whether to reopen a record is the "strong
public interest in bringing litigation to a close as promptly as is
consistent with the interest in giving the adversaries a fair opportunity to
develop and present their respective cases." Id. In a similar vein, this
Court has stated: "Reopening an evidentiary hearing is a matter of agency
discretion, and is reserved for extraordinary circumstances." Cities of
Campbell v. FERC, 770 F.2d 1180, 1191 (D.C. Cir. 1985) (citations omitted).
In asserting error by the Authority, petitioner places great emphasis on the
fact that the new evidence was not in existence at the time of the first
hearing. (Brief at 38.) The Authority expressly dismissed this argument.
As the Authority explained, the fact that the "evidence was not in existence
at the time of the original hearing" actually "weighs against reopening."
PBGC III, RA 1227. When a party seeks to reopen the record to introduce
"newly discovered evidence," the party must show "that the evidence was in
existence at the time of the original trial." Id. (citing NLRB v. Jacob E.
Decker and Sons, 569 F.2d 357, 363 (5th Cir. 1978)). To rule otherwise
would encourage a procedure enabling the perpetual continuation of trials.
Id. Petitioner's claim does not demonstrate any procedural error in the
Authority's proceeding on remand.
B. Petitioner's contention that the Authority's decision was tainted by
bias is unfounded
Petitioner argues that because of "prior extrajudicial knowledge and contact
[with Power], Member Wasserman is not impartial and should not have ruled on
Power's FLRA case." (Brief at 28.) Power's argument is without merit for
three reasons: 1) petitioner failed to raise the "bias" argument before the
Authority, and thus, pursuant to section 7123(c) of the Statute, the
argument cannot be considered by this Court; 2) relevant case law regarding
recusal and bias in administrative agency decision making reveals that, even
if Power's allegations regarding Member Wasserman were true, these
allegations would not have required Member Wasserman's recusal; and 3) as
provided in Member Wasserman's declaration appended to this brief, during
his deliberations on this case Member Wasserman did not recognize Power as
anyone with whom he had previously associated (Add. B at 2).
1. Section 7123(c) bars the Court's consideration of petitioner's bias argument
Section 7123(c) of the Statute provides, as pertinent here, that "[n]o
objection that has not been urged before the Authority, or its designee,
shall be considered by the court, unless the failure or neglect to urge the
objection is excused because of extraordinary circumstances." 5 U.S.C. §
7123(c); see United States Department of Commerce, National Oceanic and
Atmospheric Administration, National Weather Service v. FLRA, 7 F.3d 243,
245 (D.C. Cir. 1993). Petitioner is raising the allegation of bias by
Member Wasserman for the first time before this Court. Because petitioner
did not raise this issue before the Authority, the Court is without
jurisdiction to consider the matter.
Further, petitioner has not asserted any "extraordinary circumstances" that
would justify his failure to raise the issue before the Authority.
Petitioner had the opportunity to raise the issue either before the
Authority issued its decision (almost a year and a half after Member
Wasserman became a Member of the Authority), or after the decision issued,
by way of a motion for reconsideration. See 5 C.F.R. § 2429.17; NLRB v.
FLRA, 2 F.3d 1190, 1195 (D.C. Cir. 1993).
2. Case law regarding recusal and bias in administrative adjudications refutes
petitioner's contention regarding Member Wasserman
Even if this Court were to consider petitioner's argument in this regard,
the relevant case law refutes petitioner's contentions with regard to Member
Wasserman. This Court has recognized that "'[a] motion for recusal based
upon the appearance of impropriety can have only prospective effect.'"
Jenkins v. Sterlacci, 849 F.2d 627, 634 (D.C. Cir. 1988). Petitioner,
therefore, is too late. As noted above, petitioner never moved for the
recusal of Member Wasserman nor did he raise any issue of bias before the
Authority. Further, petitioner has not demonstrated that his alleged
contact with Member Wasserman, even if true, would have required Member
Wasserman's recusal. According to this Court, "[i]n an adjudicatory
proceeding, recusal is required only where 'a disinterested observer may
conclude that [the decision maker] has in some measure adjudged the facts as
well as the law of a particular case in advance of hearing it."
Metropolitan Council of NAACP Branches v. FCC, 46 F.3d 1154, 1164-65 (D.C.
Cir. 1995).[25] The Court also noted that it will set aside a member's
decision not to recuse himself
"only where he has 'demonstrably made up [his] mind about important and specific
factual questions and [is] impervious to contrary evidence.'" Id. at 1165
(quoting United Steelworkers of America v. Marshall, 647 F.2d 1189, 1209 (D.C.
Cir. 1980)). Petitioner has made no such showing in this case. See also Chaney
Creek, 866 F.2d at 1432 (no actual bias by the decision maker because no
activity indicative of prejudice, such as making decision on key question in the
case on the basis of his personal knowledge of and belief in the integrity of
the party defendant).
3. Member Wasserman's decision was unbiased
Finally, and again, assuming this Court were to consider petitioner's
argument that Member Wasserman should have recused himself, petitioner's
allegations are disproven by Member Wasserman's declaration. As set forth
in his declaration, Member Wasserman participated in the Authority's
decision in this case without any recollection of prior association with
Power. (Add. B at 2.) Based upon this declaration, together with Power's
admission that there is not "anything Member Wasserman did during the FLRA
adjudication, or wrote in the FLRA decision, [that] constituted his actual
bias" (Brief at 26), the Court should reject petitioner's claim that the
Authority's decision is tainted by Member Wasserman's participation in the
decision.
CONCLUSION
For the foregoing reasons, the Court should affirm the Authority's decision
and deny the petition for review.
Respectfully submitted.
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
ANN M. BOEHM
Attorney
Federal Labor Relations Authority
607 14th St., N.W.
Washington, D.C. 20424
(202) 482-6620
DATE: February 11, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
DAVID F. POWER,
Petitioner
v. No. 97-1414
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
PENSION BENEFIT GUARANTY CORPORATION,
INTERVENOR )
_______________________________
CERTIFICATE OF SERVICE
I certify that copies of the Brief For The Federal Labor Relations
Authority, have been served this day, by mail, upon the following:
Steven J. Silverberg, Esq James J. Keightley
1629 K Street, N.W., General Counsel
Suite 802 Terrence M. Deneen
Washington, D.C. 20006 Principal General Counsel
Nancy S. Heermans
Senior Counsel
Pension Benefit Guaranty Corporation
1200 K Street, N.W.,
Suite 340
Washington, D.C. 20005
Thelma Brown
Paralegal Specialist
February 11, 1998
I certify that the Final Brief of the Federal Labor Relations Authority does
not exceed 12,500 words, the maximum amount allowed under Circuit Rule 28(d).
Ann M. Boehm
Attorney
February 11, 1998
[1] The appendices in this case are abbreviated as follows: Original Joint
Appendix, "JA"; Original Supplemental Appendices 1-6, "SA-1-6"; Appendix after
Remand, "RA"; Supplemental Appendices 7-13 (after remand), "SA-7-13".
[2] Pertinent statutory and regulatory provisions are set forth in
Addendum ("Add.") A to this brief.
[3] The Authority, in an effort to clarify the complex nature of these
charges, grouped the misconduct charges somewhat differently in its final
decision than in the PBGC removal letters and in PBGC I. See SA-6 909, 1031;
PBGC I, JA 2.
[4] Power also filed a formal grievance over his appraisal. PBGC I, JA 5.
[5] The OGC attorneys gave their survey responses to Information Service
Specialist Donald Morrison, a GS-9 unit employee in the OGC. Power asked for a
copy of the survey data, but Morrison refused. When Morrison was unable to
print out the survey data during his scheduled time at work due to his printer's
malfunction, he asked Power to retrieve the survey data when it eventually came
through the printer and to put it on Morrison's desk. Power, however, retained
the survey data. 967 F.2d at 661; PBGC I, JA 6.
[6] Among other things, the Kalkines warning (1) assured Power that none
of his answers would be used against him in a criminal proceeding, and (2)
warned him that a refusal to reply fully and truthfully could result in removal
from the federal service. SA-6 928.
[7] Section 7116(a)(1) and (2) of the Statute provides,
[I]t shall be an unfair labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
(2) to encourage or discourage membership in any labor
organization by discrimination in connection with hiring,
tenure, promotion, or other conditions of employment.
5 U.S.C. § 7116(a)(1) & (2).
[8] Section 7102 provides, in pertinent part, that "[e]ach employee shall
have the right to form, join, or assist any labor organization . . . freely and
without fear of penalty or reprisal, and each employee shall be protected in the
exercise of such right." 5 U.S.C. § 7102.
[9] In Letterkenny, the Authority established the analysis it would follow
to resolve alleged violations of section 7116(a)(2) of the Statute. PBGC I, JA
18. Under Letterkenny, the General Counsel bears the burden of proving by a
preponderance of the evidence that: (1) the employee against whom the alleged
discriminatory action was taken was engaged in protected activity; and (2) such
activity was a motivating factor in the agency's treatment of the employee in
connection with hiring, tenure, promotion or other condition of employment.
Letterkenny, 35 FLRA at 118. If the General Counsel fails to make the required
prima facie showing, the case ends without further inquiry. Id. Once the
General Counsel makes the required prima facie showing, a respondent may seek to
establish the affirmative defense that: (1) there was a "legitimate
justification" for the action; and (2) the same action would have been taken
even in the absence of protected activity. Id.
[10] The Douglas factors, as described by the Authority, are: (a) The
nature and seriousness of the offense, and its relation to the employee's
duties, position, and responsibilities, including whether the offense was
intentional or technical or inadvertent, or was committed maliciously or for
gain, or was frequently repeated; (b) the employee's job level and type of
employment, including supervisory or fiduciary role, contacts with the public,
and prominence of the position; (c) the employee's past disciplinary record; (d)
the employee's past work record, including length of service, performance on the
job, ability to get along with fellow workers, and dependability; (e) the effect
of the offense upon the employee's ability to perform at a satisfactory level
and its effect upon supervisors' confidence in the employee's ability to perform
assigned duties; (f) consistency of the penalty with those imposed upon other
employees for the same or similar offenses; (g) consistency of the penalty with
any applicable agency table of penalties; (h) the notoriety of the offense or
its impact upon the reputation of the agency; (i) the clarity with which the
employee was on notice of any rules that were violated in committing the
offense, or had been warned about the conduct in question; (j) potential for the
employee's rehabilitation; (k) mitigating circumstances surrounding the offense
such as unusual job tensions, personality problems, mental impairment,
harassment or bad faith, malice or provocation on the part of others involved in
the matter; and, (l) the adequacy and effectiveness of alterative sanctions to
deter such conduct in the future by the employee or others. PBGC III, RA
1222-23.
[11] Petitioner refers to the situation of Employee No. 5. (Brief at
13-14, 33-34.) However, for the reasons stated in its decision, the Authority
did not consider Employee No. 5. PBGC III, 52 FLRA at 1407 n.14; RA 1235.
[12] The Authority found that Employee No. 6's supervisor determined that
"he had to go" and took actions to ensure Employee No. 6's departure. Id. at
1237. Thus, the Authority considered Employee No. 6's departure to be "forced."
Id.
[13] The Authority also decided that even if it were to find Employee No. 1
to be similarly situated to Power "on the basis of employment background,
position, and offenses committed," it "would reach the same conclusion on the
issue of Power's alleged disparate treatment." RA 1242 n.17. In this
connection, the Authority stated that the "significant differences" in the
supervisory confidences in the employees and in the estimated potential for
rehabilitation "accounts convincingly for the differing penalties they received,
and compels a conclusion that Power was not disparately treated." Id.
[14] Although additional